Facts
- Glen R. Peterson, a lawyer representing plaintiffs in a civil jury trial, went to lunch with one of his expert witnesses during a recess.
- At a delicatessen, Peterson and the expert sat at a table already occupied by two jurors serving in the case.
- Peterson acknowledged he knew the two women at the table were jurors.
- Two secretaries from the defense law firm observed the interaction and reported it to defense counsel.
- Defense counsel moved for a mistrial based on Peterson’s communication with jurors during the recess; the trial court granted the mistrial.
- Peterson apologized to the court and stipulated that he would reimburse the county for juror fees and mileage for two days of service.
- Before retrial, the defendant sought assessment of costs and attorney’s fees against Peterson or his clients; the trial court assessed them against Peterson alone, but that order was reversed on appeal for lack of authority to impose such costs on a nonparty attorney.
- The Florida Bar charged Peterson with violating DR 7-108(B)(1) of the Florida Bar Code of Professional Responsibility, prohibiting a lawyer from communicating with a juror during trial.
Issues
- Whether Peterson violated DR 7-108(B)(1) by knowingly communicating with sitting jurors during a recess in a trial he was trying.
- What discipline was appropriate given that the content and extent of the communication were unclear and no improper intent was proven.
Decision
- The Supreme Court of Florida approved the referee’s finding that Peterson violated DR 7-108(B)(1) by communicating with two jurors during trial.
- The court imposed a public reprimand.
- The court also imposed one year of probation, conditioned in part on successful completion of the Multistate Professional Responsibility Examination (MPRE).
Legal Principles
- A lawyer is prohibited from communicating with jurors during the course of a trial under DR 7-108(B)(1).
- Knowing contact with sitting jurors constitutes professional misconduct even if the communication’s subject matter is unclear or innocuous.
- Proof of intent to gain an unfair advantage is not required to establish a violation; lack of improper motive may mitigate the sanction but does not excuse the misconduct.
- Professional discipline is separate from civil cost-shifting remedies; the absence of authority to assess costs and fees against an attorney in the civil case does not bar bar discipline for the same conduct.
Conclusion
The Supreme Court of Florida disciplined an attorney who knowingly communicated with jurors during trial recess, holding that DR 7-108(B)(1) imposes a strict ban on juror contact during trial regardless of proven intent, and ordered a public reprimand with one year of probation conditioned in part on passing the MPRE.